I have been a practicing attorney in the state of New Jersey for more than 40 years. I have never written a letter complaining about our judiciary—until now. It is antithetical to our system of justice for judges to color their decisions with their personal moral positions. However, in the Federal Judiciary for the District of New Jersey this is common practice in the court’s decisions in the area of law known as the Fair Debt Collection Practices Act.
This statute is a well-intentioned law that is in place to curb harassing and abusive conduct by debt collectors. Unfortunately, judges have ignored the purpose of the statute and continually penalize debt collectors for conduct that is not abusive or harassing, based solely upon the judges’ bias against this group of professionals.
While I understand that debt collectors are generally not looked upon favorably in our society, it is the job of our judiciary to treat all segments of society fairly, even those that are disliked. Some obvious and recent examples of bias against debt collectors by our federal judiciary come to mind.
The first example is the case of Stever v. Harrison, decided by Jose Linares, Chief Judge for the District of New Jersey. Defendant Harrison, a debt collector, sent a collection letter to plaintiff for failure to pay a bill owed to Harrison’s client. It was a rather benign letter that no one could or would claim was harassing or abusive in any respect. Plaintiff, however, claimed that Harrison violated the FDCPA by including a bar code (a series of squiggly lines) that showed through the window of the envelope housing the collection letter. Plaintiff’s theory was that a third person could intercept the piece of mail, and use an iPhone to scan the bar code, revealing an account number that was internally generated by Harrison’s office.
Judge Linares ignored the fact that a third party would have to illegally intercept the piece of mail intended for another, and illegally scan the piece of mail to obtain the internally generated account number. Most importantly though, Judge Linares then went on to conclude that the inclusion of this account number hidden by an indecipherable bar code contained financial information. The “disclosure” of this “financial information,” Linares posited, was a violation of the FDCPA. He did not give any reason for his conclusion that an internally generated account number contained financial information. And the obvious reason that he didn’t support his conclusion is that an internally generated account number, by its very essence, cannot and does not contain financial information.
One can only conclude that the reason for his decision against Harrison is his bias against debt collectors. The decision is an extremely poorly written and poorly reasoned decision, and the obvious reason is that he could not support his biased conclusions. What Judge Linares forgets is that debt collectors provide a legitimate service to our society. The 5 percent of people who do not pay their bills make every good and service more expensive for the remaining 95 percent of the consumers in this country. Moreover, Judge Linares ignored the concept that the purpose of this statute is to prevent harassing and abusive communications with debtors. Harrison’s behavior was anything but harassing or abusive.
The second example of bias against a debt collector occurred also in the context of the above case. Since the FDCPA is a fee-shifting statute, Magistrate Joseph Dickson was called upon to assess reasonable attorney fees against Harrison. His order for “reasonable” attorney fees granted plaintiff’s attorney an hourly rate of $500. In assessing attorney fees, Judge Dickson ignored the fact that plaintiff’s attorney is not an experienced FDCPA practitioner, the case that he brought was not particularly complicated, and the hours that the attorney claimed were spent on this case were exaggerated.
The imposition of “reasonable” fees was originally conceived to pay an attorney what a consumer would have paid an attorney to prosecute his case. Does anyone really believe that a consumer would have paid an attorney $500 an hour to prosecute an FDCPA violation when there was not the slightest hint of abusive or harassing behavior by the debt collector? Judge Dickson gave plaintiff’s attorney everything that he asked for and awarded an extraordinary amount for the preparation of the fee motion. Judge Dickson awarded the attorney nine hours for the preparation of a fee application. Query: How can it possibly take nine hours to prepare a fee application by an “experienced” FDCPA attorney? The answer is that it can’t. A first-year law student should be able to prepare a fee application in a fraction of that time. One can only conclude that Judge Dickson did not scrutinize the facts of this case and made a decision based on an anti-debt collector bias.
A third example occurred in the case of Brannigan v. Harrison. It was a claim that one of Harrison’s collectors violated the FDCPA during phone conversations that occurred with Brannigan. There is no allegation of harassing or abusive language. In fact, Judge Michael Vasquez indicated that Harrison’s collector “was always polite, professional and cordial: she was never abusive or harassing.” Right there that should have concluded the inquiry. But it didn’t. Plaintiff contended that his client could have concluded from the conversations with Harrison’s collector that his representative was an attorney when she was not, and that if such was the case that would have been a misrepresentation that violated the FDCPA.
All conversations were recorded and presented to the court. Both parties stipulated as to the accuracy of the recordings. Plaintiff and defendant filed motions for summary judgment. Judge Vasquez indicated that since there was a factual dispute, he could not grant either motion for summary judgment. Query: How can there be a factual dispute when the relevant facts were stipulated to by both parties and presented to the court? There could not be a factual dispute under these circumstances. While on its face this may not appear to be a case of bias against the debt collector, the insidious lack of a decision can only lead to the conclusion that the judge was afraid to rule in favor of the debt collector, even though the facts unassailably warranted that conclusion.
These are three examples of either anti-debt collector bias, or a remarkably poor understanding of the purpose of the FDCPA—to prevent abusive and harassing behavior by debt collectors. Unfortunately, these examples are not exceptions in the handling of FDCPA cases by the Federal Court in the District of New Jersey. They are the norm. And this treatment of debt collectors is nothing less than egregious, given the fact that the fee-shifting provisions of this statute are so weighted against the debt collector that it is near impossible for a debt collector to fully utilize the remedies available to it because of the fear of having to pay double or triple attorney fees if they lose.
And, make no mistake about this, it is not the consumer who is vindicated in these lawsuits. These lawsuits are nothing more than a money-grab by attorneys who have found a safe and supporting judiciary in New Jersey. Our judiciary is charged with giving fair and equal treatment to litigants. Debt collectors are litigants who also deserve fair treatment. The current treatment of our debt collectors represents a dereliction of duty by our judiciary. This behavior needs to end. And, if it does, the court calendar might shrink so it can hear cases that truly deserve the attention of the court.
Michael Harrison is a debt collection attorney in Denville. He is the defendant in the cases discussed in this commentary.